FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32531/96 by Aune JAKOLA against Sweden

The European Court of Human Rights ( First Section ), sitting on 4 May 2000 as a Chamber composed of

Mrs W. Thomassen, President , Mrs E. Palm, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste , judges , [Note1]

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 May 1996 and registered on 6 August 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Finnish national, born in 1936 and resident in Vårby , Sweden.  She is a pensioner.  Before the Court she is represented by Mr Wäinö Pietikäinen , chairman of a patients’ association.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

The applicant requested compensation for an industrial injury under Chapter 3, Section 1 of the Work Accident Insurance Act ( lagen om arbetsskadeförsäkring ).  On 14 November 1991 the Social Insurance Office ( försäkringskassan ; hereinafter “the Office”) rejected the application, considering that the applicant’s pains were not related to her work.

The applicant appealed to the County Administrative Court ( länsrätten ) of the County of Stockholm.  She submitted a certificate by the chairman of the local union branch, indicating the number of workers suffering from similar injuries at the applicant’s workplace.  She did not request an oral hearing and the court did not hold one of its own motion.

By judgment of 28 October 1992, the County Administrative Court rejected the appeal, having regard to medical certificates and other evidence in the case.

The applicant then appealed to the Administrative Court of Appeal ( kammarrätten ) in Stockholm, now requesting that an oral hearing be held and that witnesses be examined.  On 12 October 1993 the court rejected the request for an oral hearing, giving the following reasons:

(Translation)

“The proceedings before the [court] consist of a written procedure.  According to Section 9 of the Administrative Court Procedure Act, the proceedings may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted.  An oral hearing shall take place at the request of an individual party to the case, if such a hearing is not unnecessary and there are no particular reasons against it.

The [court], having regard to the subject-matter at issue and the facts available in the case, finds that an oral hearing is unnecessary and rejects the request for such a hearing.  [The applicant] is invited to submit her final written observations in the case within one month after receipt of this decision.

A decision in the case can be made notwithstanding failure to submit [such] written observations.”

In response, the applicant alleged that the court was not impartial if it did not hold an oral hearing and examine the proposed witness.  She also submitted a supplement to the certificate by the chairman of the local union branch.

On 28 March 1995 the Administrative Court of Appeal found that there was still no reason to hold an oral hearing and rejected the applicant’s appeal.

The applicant requested the Supreme Social Insurance Court ( Försäkringsöver-domstolen ) to grant leave to appeal.  She again requested that an oral hearing be held and that witnesses or a medical expert be examined and stated that, if this was refused, the court would not be impartial.

By letter of 2 June 1995, the Supreme Social Insurance Court informed the applicant that it would probably not hold an oral hearing in the case.  She was given the opportunity to submit further observations in writing on the question of leave to appeal.  Subsequently, as a result of a reform of the judiciary, the Supreme Social Insurance Court ceased to exist and the applicant’s appeal was transferred to the Supreme Administrative Court ( Regeringsrätten ).

By letter of 15 September 1995 the Supreme Administrative Court informed the applicant that it did not intend to hold an oral hearing or carry out any further investigation ex officio .  She was also given the opportunity to submit further observations in writing.

On 9 April 1996 the Supreme Administrative Court refused the applicant leave to appeal.

B. Relevant domestic law

a. Industrial injury insurance

All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the 1976 Act.  Anyone who is put on the sick-list as a result of an industrial injury and who is insured under the 1962 Act is entitled to the same per diem cash benefit from the ordinary sickness insurance (social insurance) during the first 90 days as if he were sick for a reason other than an industrial injury.  When 90 days have passed, the insured person is entitled to a per diem sickness cash benefit in accordance with the 1976 Act (industrial injury insurance), if his ability to carry on with gainful employment is reduced by at least 25 per cent (50 per cent prior to 1 July 1990).  After the period of sickness has come to an end and the insured person is no longer on the sick-list, he is entitled to a life annuity if his capacity for gainful employment is reduced by at least a fifteenth.

An industrial injury shall immediately be reported to the employer, who shall report it to the appropriate social insurance office.  The office shall obtain a medical opinion concerning the injury.  A doctor shall be attached to the office in order to assist the office in medical matters (“insurance doctor”).  The assessment whether an injury qualifies as an industrial injury, as well as the degree of reduction of a person’s ability to engage in gainful employment, shall be made on the basis of the available medical opinions, the insurance doctor’s assessment of those opinions and any other information pertaining to the matter.

b. Procedure

A decision by the Social Insurance Office in accordance with the 1962 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court.

The Supreme Administrative Court cannot examine a case on its merits without first granting leave to appeal.  The Court can grant leave to appeal in two different situations: if it is of importance for guidance in the application of the law that the Court examine the case; and if there are extraordinary reasons for the Court to examine the case, e.g. on account of the fact that a ground exists for the re-opening of the case or that the outcome of the case in the inferior court was clearly due to a gross oversight or a gross mistake.

The procedure in the administrative courts is governed by the provisions of the 1971 Administrative Court Procedure Act ( förvaltningsprocesslagen ; hereinafter “the 1971 Act”).  According to Section 9 of the Act, the proceedings consist of a written procedure.  However, the proceedings may include an oral hearing with regard to a certain issue, when there is reason to assume that such a measure would be to the advantage of the proceedings or that a rapid determination of the case is promoted.  According to the third paragraph of Section 9, an oral hearing shall take place before a County Administrative Court and an Administrative Court of Appeal on the request of an individual party to the case, if such a hearing is not unnecessary and there are no particular reasons against it.  Thus, the opportunity for an individual party to the case to obtain an oral hearing on request under those circumstances was not available in the proceedings before the Supreme Administrative Court.

According to the travaux préparatoires to the 1971 Act (Government Bill 1971:30, p. 353) the oral element can be a valuable complement to the written proceedings and an oral hearing can be of advantage to the examination of a case in two respects, mainly.  First of all, in order to hear a witness, an expert witness or a party, or when it is difficult for a party to present the case in writing.  Secondly, in order to sort out the different positions in the case and to eliminate unnecessary or pointless issues of dispute.  In the latter case, the oral hearing takes on a preparatory character.  When the Act was drafted, it was also stressed that oral elements in the proceedings are not to be seen as an alternative to the written procedure but merely as a complement to it.

The reference in Section 9 of the 1971 Act to the promotion of a rapid determination of the case was added in 1983.  The purpose was to make it clearer that an oral hearing could, and should, be held in order to further a more rapid and effective examination of the case.  The amendment aimed mainly at such cases concerning taxation that are connected with criminal proceedings before the general courts (cf. Government Bill 1982/83:134).

In connection with the enactment of the 1971 Act it was stated, in respect of the third paragraph of Section 9, that a party’s request for an oral hearing should be given great consideration.  However, the party would not be allowed to have a decisive influence in the matter.  The question whether or not an oral hearing is unnecessary should primarily be determined against the background of the available information in the case.  Other circumstances can, however, also be of relevance, for instance the importance for the party of the matter at stake or the fact that an oral hearing would enhance the party’s understanding of a future decision in the case.  A particular reason against the holding of an oral hearing can be that the case is of a trivial character or that the costs for an oral hearing would not be proportionate to the values involved in the matter at stake (cf. Government Bill 1971:30, p. 537).

COMPLAINTS

1. The applicant complains that the lack of an oral hearing before the courts constituted a violation of Article 6 of the Convention.

2. Under Article 6 of the Convention the applicant also complains that the courts were partial and the proceedings unfair, given that in their judgments the courts failed to consider an invoked certificate by the chairman of the local union branch and an article in a trade union paper.  Consequently, the courts’ conclusions were arbitrary and unlawful.

THE LAW

1. The applicant complains about the lack of an oral hearing before the courts. She invokes Article 6 of the Convention which reads, so far as relevant, as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”

The Government are of the opinion that it can be seriously questioned whether there did not exist in this particular case circumstances that justified dispensing with an oral element during the court proceedings.  First of all, the Government maintain, the fact that the applicant did not request the County Administrative Court to hold an oral hearing means that she at least tacitly waived her entitlement to have her case heard in public in relation to that judicial instance.  Secondly, the decisions of the Administrative Court of Appeal not to hold an oral hearing was in accordance with the applicable law.  Furthermore, since the judges in the Administrative Court of Appeal have no medical expertise of their own, it would not have been able for the court to make its own assessment of the applicant’s ability for gainful employment by meeting her in person.

The Government also recall that the applicant was represented by counsel in the proceedings and that counsel appears to have been familiar with the subject-matter.  It cannot therefore, in the Government’s view, be considered to have been difficult for the applicant to argue her case in writing.  Lastly, the Government aver that since the proceedings concerned whether or not the applicant was entitled to benefits under the industrial injury insurance, there were no questions of public interest involved which could have made public hearings necessary.

The applicant maintains her application.

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application.  The Court co n cludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.  No other grounds for declaring it inadmissible have been established.

2. The applicant complains that the courts were partial and the proceedings unfair, given that in their judgments the courts failed to consider an invoked certificate by the chairman of the local union branch and an article in a trade union paper.

The Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.  In particular, it is not competent to deal with applications concerning errors of law or fact allegedly committed by the competent national authorities, to whom it falls, in the first place, to interpret and apply domestic law.  The Court has no competence to examine allegations concerning such errors except where, and to the extent that, they seem likely to have entailed a possible violation of any of the rights and freedoms set out in the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, § 28, with further reference, to be published in Reports of Judgments and Decisions 1999).

It is true that the applicant contends that the courts were partial and the proceedings unfair, given that in their judgments the courts failed to consider certain documents submitted by her, and invokes in this respect Article 6 of the Convention.  However, an examination of this part of the application has not disclosed any appearance of a violation of this provision.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits of the case, the applicant ’s complaint that she was not granted an oral hearing;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)